IN
THE
COURT OF COMMON PLEAS
CUYAHOGA COUNTY,
OHIO
STATE OF OHIO
CASE
NO. CR 64571
Plaintiff
-vs.-
SAMUEL
H.
SHEPPARD
Defendant
PETITION
FOR DECLARATION OF
INNOCENCE AS A WRONGFULLY IMPRISONED INDIVIDUAL
Now comes Alan J. Davis, Special
Administrator of the Estate of Samuel H. Sheppard,
through undersigned counsel, and hereby
petitions this
Honorable Court for an order, pursuant to Ohio Revised Code Section
2743.48, to
declare Samuel H. Sheppard a wrongfully imprisoned person, for the
reason that
said Samuel H. Sheppard was convicted of second degree murder of his
wife,
Marilyn Sheppard, in 1954, spent nearly ten years in prison as a result
of this
conviction, and, as the evidence will show by clear and convincing
proof, was
actually innocent of this crime.
This Court, pursuant to Ohio Revised
Code Section 2305.02:
“...
has
exclusive, original jurisdiction to hear and determine an action or
proceeding
that is commenced by an individual who satisfies divisions (A) (1) to
(3) of section
2743.48 of the Revised Code and that seeks a determination by the court
that
the offense of which he was found guilty, including all lesser included
offenses, either was not committed by him or was not committed by any
person."
The
basis for this Petition is as
follows:
1. Dr. Sheppard
was
indicted for murder in the first degree on August 17, 1954 in
connection with
the death of his wife, Marilyn Sheppard.
2. His trial
ended
with a verdict of guilty of murder in the second degree on December 21,
1954,
and on January 3, 1955, he was sentenced to life imprisonment.
3. After a
lengthy
appeals process, the United States Supreme Court in 1964, reversed the
conviction and ordered a new trial based on the unfairness of the trial
and the
prejudicial role of the media.
4. On November 16, 1966,
Dr. Sheppard was
subject to a re-trial and found not guilty of the murder.
5. Dr. Sheppard
was
incarcerated for
nearly ten years in Ohio
prisons.
6. At the time
of
his arrest, Dr. Sheppard was a practicing physician, with a successful
career,
the father of a young son, age seven, and a prominent member of the
community.
The conviction and incarceration essentially ruined his life and caused
irreparable suffering for his son and other members of his family. Dr.
Sheppard, a once healthy and athletic man, died on April 6, 1970 at the
age of
46, due in large part to the years of physical neglect, abuse and
mental
anguish arising from this prosecution, imprisonment, separation from
family,
society and career.
7. Despite his
acquittal
in 1966, the
State of Ohio,
through the various law enforcement agencies involved in this case,
never
seriously entertained the notion of finding the actual killer of
Marilyn
Sheppard. While the case was technically open and unsolved, these
agencies did
little more than filing reports of new information that would come to
their
attention, yet take no serious investigative action.
8. Between 1990
and
1995, Samuel Reese Sheppard, son of Dr. Sheppard; Cynthia Cooper, a
journalist-author;
investigators from AMSEC, a professional investigative firm; and
undersigned
counsel conducted a comprehensive and massive review of every aspect of
this
case. Witnesses, many of whom were never contacted by law enforcement,
were
interviewed. Police reports, forensic reports, and witness statements
never
provided the defense at trial, nor disclosed since, were obtained
through
Public Records Act requests and litigation. Contemporary forensic
experts were
consulted to review scientific evidence in the case, measuring the
significance
in light of modern forensic science.
9. The result
of this
investigation leads
to the conclusion that Dr. Sheppard is innocent of the murder of his
wife,
Marilyn, and that an individual named Richard Eberling currently
incarcerated
for the murder of another woman, is the likely murderer.
10. The critical evidence in
support of Dr.
Sheppard's innocence will be presented in the course of these
proceedings;
however a few major disclosures should be mentioned at this juncture:
(A) The killer
of Marilyn Sheppard left a trail of blood from the murder room
throughout the
house, blood that could only have come from the oozing wound of the
murderer. A
newly disclosed police report reveals the existence and even collection
of
samples from this blood trail, but no testing was ever done for blood
type. Dr.
Sheppard was immediately examined, and although he had serious neck and
back
internal injuries (as a result of his being assaulted by the killer),
no open
wounds were found on his body. Marilyn Sheppard's teeth were pulled out
in a
way that indicated she bit the person who was attacking her. Blood from
a third
person was found in the murder room after testing by renowned
criminalist Dr.
Paul Leland Kirk, who conducted an exhaustive search of the crime scene
in
1955. Richard Eberling, when arrested for a series of burglaries and
thefts in
1959 (including the theft of Marilyn Sheppard's ring from the home of
Dr.
Sheppard's brother), disclosed that he had cut his hand washing windows
at the
Sheppard home, but gave conflicting times and dates as to when that
supposedly
occurred. In 1990, investigators tracked down a co-worker of Eberling
who
insisted that he, not Eberling washed the windows at the Sheppard home
in the
days before the murder. Incidentally, Eberling was not interrogated by
police
at the time of the murder, and in 1959, when Eberling was in custody,
police
were told to drop the matter by Coroner Gerber, Dr. Sheppard's
principal
accuser, as well as John T. Corrigan, the County Prosecutor.
(B) A Scientific
Investigation Unit report, also never disclosed by the prosecution,
reveals
that there was fresh evidence of forcible entry through the cellar
door. The
finding was significant enough to require a plasticine impression of
the
damaged doorway. Yet, the prosecution's most powerful argument against
Dr.
Sheppard was that there was no evidence of a break-in, and that Dr.
Sheppard
was the only one in the house at the time of the murder. That theory
can now be
debunked because the killer entered through the basement, an entry only
known
to a small number of people, including Eberling.
11. The
re-investigation focused on Richard Eberling as a suspect, who is now
serving a
life imprisonment for the murder of Ethel Durkin. Eberling has a long
and
documented history of psychosis and psychopathic symptoms, beginning
with
neurological impairment as a child. His medical, psychological, and
behavioral
patterns are consistent with those of disturbed and even serial
killers. The
investigation reveals other unsolved killings of women, including the
sisters
of Ms. Durkin and others, with striking similarities to, the Sheppard
murder.
Eberling was obsessed with Marilyn Sheppard as indicated by his focus
on owning
her ring. He was a jewel thief and burglar, and on the' night of the
murder,
jewelry and cash were taken from the home. He was jealous of the
Sheppard’s and
their success in life, and the family he never had. He hated Dr.
Sheppard for
his athletic accomplishments, and two athletic trophies were smashed to
the
floor on the night of the murder, evidence of hostility and hatred.
Eberling
had a remarkable knowledge of the description of the property and the
furnishings, and as of 1992, was able to draw an architecturally
accurate
drawing of the property. He cannot truthfully account for his
whereabouts at
the time of the murder. He fits all the available descriptions of the
killer,
including the build, the height, the large head, and the use of wigs.
The
police drawings derived from eyewitnesses who saw a man near the
Sheppard home
that evening, reveal a similarity to Eberling. Finally, Eberling, who
granted a
number of interviews and corresponded with Cynthia Cooper since 1992,
has been
obsessed with the Sheppard murder case and Marilyn Sheppard herself,
and has
made statements such as "why do women fight back when they are
raped?" or "I'm looking at her now and she doesn't look
pregnant." There is evidence that Marilyn Sheppard was sexually
assaulted,
as inferred by her nightgown pushed above her abdomen, yet this aspect
was
never pursued by the police.
12. The evidence will show that
Eberling had
motive, opportunity, identity, and access to kill Marilyn Sheppard.
13. A review of all the
evidence demonstrates that Dr. Samuel H. Sheppard could not have
murdered his wife, had
no reason to murder his wife, and was a victim of a misdirected,
overreaching
prosecution.
WHEREFORE,
it is urged that this
Court undue this momentous injustice, declare Dr. Sheppard innocent,
and enter
a determination that he is a wrongfully imprisoned individual.
Respectfully
submitted,
TERRY
H. GILBERT (0021948)
Attorney for
Petitioner, Special
Administrator
of the Estate of Samuel H. Sheppard
1700 Standard Building
1370 Ontario Street
Cleveland,OH 44113
(216) 241-1430
CERTIFICATE
OF SERVICE
A
copy of the foregoing has been hand-delivered, this 19 day of
October, 1995, to
Stephanie Tubbs Jones, Cuyahoga County Prosecutor, at her office, Justice Center, 1200 Ontario
Street, Cleveland, Ohio 44113.
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